Summary: The Council correctly investigated concerns about a neighbour operating a business at home, and causing noise nuisance to Mr B. However, the Council failed to respond to some of Mr B’s correspondence which caused annoyance, the Council will apologise.

The complaint

1. The complainant, who I will call Mr B, says despite evidence showing his neighbour receives regular timber deliveries, has industrial lathes at his house, and has a registered company at his home address, the Council has decided he is not running a business at home. Mr B says his neighbour has outbuildings for which he does not have planning permission. Mr B says the Council did nothing for three months when he first raised his concerns, and only acted when he made a corporate complaint. Mr B is affected by the noise of the machinery; Mr B says the Council’s noise monitoring was conducted when the neighbour was on holiday so was not representative of the nuisance. The noise affects his enjoyment of his garden.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I considered:
• Information provided by Mr B, including during telephone conversations.
• The Council’s responses to my enquiries.
• The Town and Country Planning Act 1990.
• The Town and Country Planning (Use Classes) Order 1987
• The Environmental Protection Act 1990.
• The Council’s ‘Corporate Enforcement Policy’
• Responses to a draft of this statement.

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What I found

5. Mr B contacted the Council with concerns that his neighbour is running a business from home, and the noise from machinery is so loud it affects the enjoyment of his home. This case involves several Council departments to consider various aspects.
6. The Council has a ‘Corporate Enforcement Policy’ which sets out its general approach to enforcement. When the Council becomes aware of an issue it will assess the information received and may make further enquiries to determine if the issue requires full investigation. It may send an officer to do a preliminary investigation. It does not specify what a full investigation consists of.

Planning

7. You do not necessarily need planning permission to work from home, the key test is whether the overall character of the dwelling will change because of the business. If the use of the dwelling changes you might need planning permission for the change of use.
8. Mr B reported his concerns to the Council in August 2018. The Council completed four site visits over three months, including on a weekend. The Council spoke with Mr B’s neighbour (X). X told the Council he works full time for a company, though on a self-employed capacity so has a business registered to his home address for accounting purposes. X has industrial equipment at home from a previous business, but only uses the equipment at home to do work to his house and to cut logs. The Council saw several months of invoices showing X was working for a company. The Council decided there was no evidence of X running a business at the property.
9. Mr B says the neighbour has built outbuildings which is in breach of restrictive covenants on the property. Land ownership, including any restrictions that may be associated with land, is not a planning matter. Mr B would need to seek legal advice on that issue; it is a civil matter and not for the Council.
10. Mr B says the buildings are evidence of a business as nobody would need storage that size for DIY purposes. The Council witnessed the outbuildings at site visits and has not considered they are evidence of a business.

Local taxation

11. If you are running a business from home you may have to pay business rates on the part of your property that you use for your business. This depends on whether the Valuation Office Agency (VOA) has given a rateable value to a part of your home. You will still have to pay council tax on the rest of your property.
12. The planning department contacted the local taxation team to see if it had any information about X running a business. It did not, but decided to visit the site and spoke with X. The local taxation team referred the matter to the VOA with a concern X may be running a business, the VOA decided no action was needed.

Environmental health

13. Councils must investigate complaints about noise that could be a statutory nuisance. For noise to count as a statutory nuisance it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises
• Injure health or be likely to injure health
14. The Council wrote to X and asked Mr B to keep a diary of events. Following the receipt of Mr B’s diary entries, the Council installed noise monitoring equipment at his property for a week. The equipment recorded one instance of the noisy machinery, which lasted for three minutes and was on a weekend.
15. The Council decided there was insufficient evidence to take the matter further, it wrote to Mr B and closed the case.

Complaint handling

16. On 28 September Mr B made a formal complaint to the Council about its lack of action to address his concerns. Mr B wrote to the Chief Executive and is disappointed he did not receive a reply directly. Instead, the reply came from a senior officer.
17. Mr B said he first contacted the Council on 30 July, it sent him log sheets to complete on 1 August, he wrote again on 2 September but received no response. Mr B said he also wrote on 6 August, received an acknowledgment letter two days later but had no further contact.
18. The Council responded to the complaint within its 20 working day timescale. The Council gave an update on the actions it was taking regarding the noise nuisance and planning enforcement investigation. The Council did not comment on Mr B’s concerns that it had not responded to some of his correspondence.
19. Mr B asked that his complaint be considered at stage two of the Council’s complaint procedure. Mr B said the Council never responded to his August correspondence, and he believes his evidence shows X is running a business from his home.
20. The Council responded to the complaint within its 20 working day timescale. The Council again did not respond to the concern that it did not respond to earlier correspondence. It confirmed the actions it had taken to investigate concerns, acknowledged a slight delay in planning enforcement visiting the site, but concluded its investigation was proportionate and the conclusions reached were reasonable.
21. Mr B says he is having ongoing problems with the Council not responding to correspondence, he has made a separate complaint.

Findings

22. The Council’s planning department has carried out appropriate investigation by visiting the site several times (including on weekends) and seeing the outbuildings, machinery and equipment. It interviewed X, and considered evidence of X’s employment. It has considered evidence provided by Mr B regarding X’s registered business at his home address, and vans delivering wood. It considered the noise monitoring results.
23. X gave the local taxation department slightly different information to that he gave to planning. The departments should have shared relevant information with each other. However, given the VOA has decided there is no evidence of a business the planning department has decided the information the local taxation department obtained does not change anything.
24. The Council properly considered whether there was a statutory noise nuisance by asking Mr B to provide diary sheets recording noise nuisance, and by completing noise monitoring.
25. Mr B says X was on holiday when the Council did the noise recording, but I have no evidence he told the Council this. Mr B wrote to the Council in November after the noise recording took place, he said the period was too short but not that X was away. Although Mr B says seven days was too short, his previous diary sheets showed noise occurred on around five days each week. I do not consider seven days would be insufficient for the Council to gather evidence. If Mr B can show X was away for most of that period, then the Council should consider whether to re-install noise recording equipment on that basis.
26. There is no reason for the Ombudsman to question or criticise the Council’s decision there is no evidence of a planning change of use at the property, or of any statutory noise nuisance. The Council completed proportionate investigations to reach its decisions on these matters. Mr B disagrees with the Council’s decision, but there is no evidence of fault in the Council’s investigation and decision-making process.
27. I have no evidence the Council responded to Mr B’s correspondence of 6 August and 2 September. Therefore, Mr B takes the view the Council did nothing until he complained. The Council’s chronology and evidence shows it was actively investigating Mr B’s concerns during August and September, but the failure to respond to his correspondence and keep him updated causes uncertainty and annoyance to Mr B.
28. The Ombudsman does not consider it fault that the Chief Executive did not reply to correspondence addressed directly to them. Mr B’s letter was a letter of complaint and was appropriately addressed through the Council’s complaint process. The Council’s policy is that the stage 1 response is from a lead officer for the relevant service; that is who replied to Mr B’s letter.
29. The issues with X are ongoing; the Council continues to consider additional evidence Mr B supplies and complete any investigation it considers necessary and proportionate. Mr B has made a complaint to the Council about the ongoing issues, which is separate to this investigation looking at events up to Mr B’s September 2018 complaint to the Council.

Agreed action

30. To acknowledge Mr B’s annoyance the Council will apologise for its failure to respond to his letters of 3 August and 2 September. The Council should complete this within one month of the Ombudsman’s final decision, and evidence its compliance to the Ombudsman.

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Final decision

31. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Mr B.

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Investigator's decision on behalf of the Ombudsman